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August 2, 2004

Updating the Blakely scorecard

Tahlia Townsend was kind enough today to pass along her "tally of Blakely cases to date, prepared for the Federal Defenders in Manhattan." The document, which you can download here, organizes the cases in the form of string-cites for various key propositions — e.g., "Blakely Does Not Apply to U.S.S.G. Enhancements" or "Blakely Applies to U.S.S.G. Enhancements"; "Sentencing juries endorsed / criticized"; etc.

I have not had a chance to review the document closely, but it looks accurate and up-to-date. In other words, though I cannot personally vouch for the document's accuracy, I can say it seems like an extremely helpful resource.Download latest_blakely_scorecard.pdf

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The "Blakely scorecard" is tremendously helpful, but it mischaracterizes the Seventh Circuit's opinion in United States v. Booker, 2004 U.S. App. LEXIS 14223 (7th Cir. July 9, 2004), as a case which holds that enhancements which run afoul of Blakely are severable. In fact, Booker explicitly declines to decide the question of severability. See id. at *19 ("we do not decide the severability of the guidelines"). Booker appears to leave the question of severability to district court judges. See id. (holding that severability "is an issue for consideration on remand should it be made an issue by the parties"). Booker therefore does not belong in section II.A of the outline. Booker properly falls into it's own new sub-category of cases which do not decide the severability question (perhaps entitled section II.C?).

The more difficult question is, in which section of the outline will the Seventh Circuit ultimately end up? Although Booker doesn't decide severability, Judge Posner's comments about severability suggest that he would conclude that if the Guidelines are not severable, they are invalid in their entirety and cannot be applied in any case. Admittedly, Posner states that the Guidelines do not violate the Sixth Amendment in cases which do not involve what the scorecard terms "Blakely-infirm enhancements." See id. at *12 ("[W]e think that the guidelines, though only in cases such as the present one in which they limit defendants' right to a jury and to the reasonable-doubt standard, . . . violate the Sixth Amendment."). Nevertheless, Posner's discussion of severability strongly suggest that he believes non-severability would render the Guidelines invalid in every case. See id. at *18-19 (“[T]he aspect of the guidelines that we believe to be unconstitutional, namely the requirement that the sentencing judge make certain findings that shall operate as the premise of the sentence and that he make them on the basis of the preponderance of the evidence, may not be severable from the substantive provisions of the guidelines. . . . In that event the guidelines would be invalid in their entirety. . . . [I]n cases where there are no enhancements—that is, no factual findings by the judge increasing the sentence—there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety"). Booker's discussion of severability suggests that if the Guidelines are not severable, they cannot be applied even in cases which do not require judges to make factual findings not found by the jury or admitted by the defendant. The Seventh Circuit may well end up in section II.B.1 of the outline. Only time will tell!

Alison Siegler
Staff Attorney, Federal Defender Program, Chicago

Posted by: Alison Siegler | Aug 2, 2004 7:32:17 PM

I am the defendant in USA v. Swan, 03-cr-036 (DCNH). On June 24th, the same day as Blakely, Chief Judge Paul Barbadoro sentenced me to 9 years under the guidelines. He vacated my sentence the next day before signing the Judgment. He scheduled another sentencing hearing for July 21st. At that hearing, he ruled the guidelines unconstitutional and he sentenced me to 6 years and 1 year of supervised release. I self-surrender on August 4th.

Posted by: Steven A. Swan | Aug 2, 2004 8:53:55 PM

I read that there was an argument that "the rule stated in Blakely is not new, the court was merely applying Apprendi. That means the rule applies to case that were not yet final on direct review when Apprendi was decided."

I did't see on the tally any cases where Blakely was considered retroactive. Does that mean that every court has rejected that argument?

Posted by: Steven Guillen | Aug 3, 2004 12:00:05 AM

1. My apologies for any confusion. The Booker cite was misplaced. I hope there are no other mistakes, but look forward to having them pointed out and corrected if there are.
2. I should clarify that the list is not meant to reflect holdings, but rather approaches. In many cases, the court's position on severability is simply unclear. In other cases it is implicit. Often, it is confused: for example, many courts simply state that they are following Croxford, but actually appear to be declaring the USSG unconstitutional in all cases, whereas Croxford actually only invalidated the Guidelines in toto in cases that involve enhancements. I have tried to cut through such confusion, and hope that other readers will be largely in agreement with my calls in such cases.
3. Re. the question about retroactivity: in Simpson v. United States, No. 04-2700 (7th Cir. July 16, 2004), the Seventh Circuit stated that "[t]he rule announced in Blakely is based in the Constitution and was not dictated or compelled by Apprendi or its progeny." However, the Court dismissed the application to file a successive collateral attack on the grounds that "the proposed claim is premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization
under § 2244(b)(2)(A) and § 2255 ¶8(2)." I have not yet seen a court hold otherwise, but look forward to being able to put a case in the other category.